The “nuclear option,” then and now

I don’t recall any of us commenting on the plan of Senate Democrats to reform, and perhaps end, the filibuster. But Harry Reid and his crew seem prepared to push for major changes in the filibuster come January. If they do, it will trigger quite a battle and probably extinguish whatever chances exist for cooperation between congressional Democrats and Republicans.

It isn’t clear just what Reid has in mind. One approach would be to maintain the filibuster but change the rules. For example, the Senate might ban filibusters that block the start of floor debates and/or that prevent House-Senate conference committees from convening. Senators could also be forced to talk at length in order to filibuster legislation.

These changes don’t strike me as indefensible. Arguably, the current system (let’s call it the “windless filibuster”) allows a minority of Senators to block legislation, and even debate about legislation, too painlessly. There’s a case to be made that the blocking of legislation by a minority of Senators should be done in a highly visible way (like the old-fashioned “windy” filibuster), so that the public can hold accountable those who engage in this anti-democratic move.

The problem is that rule changes, such as abolishing the use of the filibuster on motions to proceed, currently require a two-thirds majority. Reid doesn’t have this, so he will assert the right to change the rules by a simple majority vote. And, as Parliamentarians Emeritus of the U.S. Senate Robert Dove and Richard Arenberg have warned, if it is established that a simple majority has the power to rewrite the Senate’s rules, the majority will construct rules that give it near absolute control over amendments and debate.

Moreover, I doubt that Reid wants to stop his filibuster reform at measures that will produce more accountability. More likely, he’d prefer to eliminate the filibuster so he can run roughshod over Republicans and pass whatever liberal legislation can muster 50 votes. If Reid can conjure up enough Democrat votes to make it happen, I wouldn’t be surprised if he goes for this “nuclear option.”

Readers may recall that during the Bush years, Republicans contemplated the nuclear option for the limited purpose of confirming judicial nominees who had the support of a majority of Senators but not 60 of them. When the Democrats, including then-Senator Obama, screamed bloody murder, the Republicans backed off and consummated the Gang of 14 deal that limited the filibustering of judicial nominees to “extraordinary circumstances” (whatever that means).

At the time, some Republicans worried that if they invoked the nuclear option, the Dems would be able to confirm left-wing judges with just 50 votes once the shoe was on the other foot. I argued that, if the Republicans didn’t go nuclear, then once the shoe was on the other foot, the Democrats would, if necessary, change the rules so they could confirm their judges.

Now, with the shoe on the other foot, Reid reportedly is contemplating doing away with the filibuster altogether. That’s going too far, in my view. But it would create the possibility that, with favorable election results in 2014 and 2016, Republicans could, for example, repeal Obamacare.

This realization may give Democrats pause. So too may the realization that (a) legislation passed with less than 60 Senate votes will be DOA in the Republican controlled House and (b) President Obama may not want Congress to go nuclear just now.